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ALTERNATIVE DISPUTE RESOLUTION / MEDIATION A new dispute-solving mechanism, introduced by Law in the Greek civil law system. By Nick C. Papayannopoulos (*) Per article 6 of Law No.2479/1997, where (after the 16th September, 2000) a writ has been issued in respect of a private dispute, subject to the jurisdiction of a Multi-member Court of 1st Instance, with a value exceeding 8 million Greek Drachmas, approx. USD 20,500- (but greater than 20 million Drachmas, approx. USD 51,000- after 1st November), the parties to such a dispute must, before the Court may proceed to a hearing, meet and attempt to settle out of Court, assisted, if they so desire, by a jointly chosen third person. The procedure in this meeting(s) is entirely flexible. The parties must appear with their lawyers, or simply be represented by the latter, and may also be facilitated, if they wish so, by a jointly chosen third person. If a settlement is reached, any of the parties may obtain a Court's endorsement on the settlement agreement, whereupon the agreement becomes an order of the Court. If the parties fail to settle, unilateral declarations must be filed, or minutes, possibly containing reasons of disagreement, for the Court’s appraisal before it proceeds to hear the case. With a thirteen-year delay (since Council of Europe's recommendation, R (86) 12 / 16.12.1986) and after a five-year postponement (since law, No. 2298/1995), the concept of Alternative Dispute Resolution ("ADR") has now been introduced in the Greek civil justice system, too. ADR originated in the USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, over-professionalised, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem-solving. The American origins of the concept are not surprising, given certain features of litigation in that system, such as: trials of civil actions by a jury, lawyers' contigency fees, lack of application in full of the rule " the looser pays the costs". The last two of these features are not alien to the Greek legal system.When the concept was imported in Europe, particularly in the U.K., in early 90's, ADR initially was regarded as a rather amusing, than a really serious diversion. Now it is finding increasing favour in many European countries. In England, after the April 1999 Lord Woolf's reform to the Civil Procedure, judges have been given extensive powers of case management, including: " encouraging the parties to use ADR procedure if the Court considers that appropriate, and facilitating the use of such procedure" [Rule 1.4(2)(e)]. Since then, figures confirm the rapid growth of Mediation, which has emerged as the most popular form of ADR. The number of Mediations conducted by a leading private London organisation (**) increased by 141% in the year April '99 to March 2000. Slightly less than 1/3rd of this increase is related to cases referred to Mediation by the Courts. The average settlement rate of Mediations conducted by the same London organisation has exceeded 80%.ADR may be defined as the " collective description of methods of resolving disputes, other than through the trial process". The term covers private, confidential and non-binding (until a settlement is drafted and signed) methods, whereby the parties engage the services of a third impartial and neutral person who helps them try to resolve their dispute outside the Court system. Theoretically, arbitration is a form of ADR, too. However, even on the limited basis of application of arbitration in Greece, it is rather difficult to discern any significant differences between arbitration and litigation, particularly considering the costs and the length of time involved, the professionalism required, and the unpredictable results some times either of them may arrive at.The most popular form of ADR is Mediation. It can be either " facilitative", where the Mediator assists the parties to negotiate their own settlement terms, or "evaluative", where the parties ask the Mediator on a non-binding basis to assess the merits, so as to assist the parties to negotiate their own settlement, with further facilitative help coming from the Mediator as it may be appropriate.It would be wrong to say that the introduction of the new procedure in the Greek civil law system adds nothing in substance. Although " compromise" has always been a feasible means for settling a dispute, under the new regime, this is no longer a mere feasibility (which the parties rarely exploit); it has now been institutionalised as an obligatory prerequisite to the judicial process. Further, the new law provides for a new style of a "mutually acceptable solution". The dispute may be examined by the parties/their lawyers "without regard to the substantive law". The new law should therefore be seen by both groups, parties/clients and lawyers, as an opportunity for creative problem-solving, rather than narrow legal-rights-based solutions. A challenge for more satisfying a relationship between the two groups, and (why not) a gradual bettering of the society !If the litigating parties are to attempt find a mutually acceptable settlement in a meeting with their respective lawyers only, this might not be the best thing to happen under the new law. No matter how successful a party, or a legal representative, may be in achieving a settlement, they do so as a negotiator. The provision in the new law, that the parties/their lawyers may be " assisted, if they wish so, by a jointly chosen third person" is a key one, pointing at Mediation. And there is a ground reason for it.The essense of Mediation is the introduction of a third neutral and impartial party (a trained Mediator) who assists in the parties' negotiations. A party, or his lawyer, no matter how friendly and reasonable may be, cannot play the role of a neutral. The Mediator is neutral and detached from the parties' problem, the emotion and the commercial pressures, uncluttered by the detail; he can bring a clear mind in the settlement process. This clarity can facilitate in the creation of ideas towards a settlement in a way just not possible for the parties, their managers, or their lawyers, as they cannot avoid being at all times heavily involved in the dispute. In systems where Mediation has a proven track, settlements in Mediation are definitely not the result of a " compromise", in the sense of splitting the difference down the middle, which often is the result of last minute settlements, reached in preference to risking the costs and uncertainty of a decision by a judge (or an arbitrator).Mediation, as provided for by the new law, is in its essense voluntary. It is not intended to restrict, still less to oust, the right of any party to refer to the judicial process, ultimately. Nontheless, parties to a private dispute, of a value less than that provided by the new law, may still refer their dispute to Mediation (as a primary stage/attempt for dispute resolving), appreciating the benefits of this process. In brief, some of the main features/benefits of Mediation are as follows: Foundamental to Mediation is the close involvement of the parties themselves. They know the truth of their case, the factual strengths and weaknesses of each other. Assisted by their lawyers, and facilitated by a trained Mediator, they are in a position to arrive at a mutually acceptable and realistic solution to their dispute. It is most important that the Mediation is a confidential process, conducted entirely without prejudice. Mediation is held in private; what is discussed remains private. Consistent with it, the new law provides that where the attempt for a mutually acceptable settlement fails, and a Court hearing follows, the " third, jointly chosen, person having participated in the meeting" may not be called as a witness, neither be appointed as an expert, nor be involved under any other capacity in the ensuing judicial process.One of the great strengths of Mediation is that the parties have a complete control over the final decision. The Mediator does not impose a settlement; the parties decide! By contrast, in the Court process, the "system" takes over, the parties are put aside, and the outcome is determined by someone else (a judge, or an arbitrator) many times towards quite an unexpected direction. The Mediator can help to eliminate or to reduce the effect of some of the main "obstacles" to a settlement. His presence changes the dynamics of the negotiating procedure. Carrying nothing from the emotional or factual "baggage", that inevitably clutters the parties and their advisers, adopting a fresh and clear mind, the Mediator can make real progress possible, where direct negotiations between the parties/their advisers are difficult to progress. Of the most important benefits of Mediation is saving time and costs, if a dispute can be settled on mutually accepted terms. Mediations may last only one working day, plus a few hours preparatory work. The quicker a settlement is agreed, the greater the savings. Even if a Mediation fails, the cost of its preparation is not waisted, as a preparation will in any event be needed for a Court hearing. Finally, one of the greatest advantages is that Mediation looks forward, encouraging the parties to turn from history and look to the future. Not all disputes are resolved by defining a future relationship, but the vision of a future without the particular dispute can in itself be a powerful incentive for settlement. __________________ Much of the success of this, new to Greek civil law system, dispute-solving concept depends upon the way lawyers may use and refer to it. In other jurisdictions, lawyers in the beginning were resistant. There was concern that it would cut down lawyers' normal work. Not only did it not, but lawyers embraced ADR and many of its early pioneers were lawyers. The Greek law requires that the parties must be accompanied by their lawyers in ADR meetings, recognising thus the vital/creative problem-solving role lawyers are called upon to play. Consistent with it, the law provides for a two-fold incentive. First, both lawyers participating in an ADR meeting are entitled to fees similar to those for appearence in the respective Court. Secondly, if a settlement is arrived, the lawyers are entitled to a set percentage of the settlement amount. It may be that the law could have provided for more attractive level of fees. However, this should not distruct the legal fraternity from embracing and promoting ADR in the right sense. In an ever changing world new services are required and have to be provided. Mediation is a rapidly growing one, and Greek lawyers would rather embrace and develop it, if to maintain a leading role in community serving. In an ever globalising market, there is also a fear. Non-Greek entities, agreeing to mediate disputes of their Greek branches and requiring trained Mediators, might only find out they have to refer to non-Greeks established in, or travelling ad hoc to, Greece . Another "train" will have been missed ! It will be a great pitty too, since (as it shall be seen in another article, in a future edition) a significant number of disputes with an international element (predominantly in Shipping) may well be mediated in Greece, by Greek trained mediators.=================== Notes: nikos@epilysis.com also: llcf@internet.gr (**) CEDR (Centre for Dispute Resolution) is an ADR/Mediation provider, established in London in 1990, leading not only in the U.K., but inetrnationally too. CEDR alone is now doing a mediation a day. The number of mediations referred to CEDR for the months April-May 2000, compared with the same two months of last year, have more than doubled. |
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